Labor & Employment Law Daily Wrap Up, DISCHARGE—D.N.H.: Remote Boston Medical Center employee, fired after refusing COVID vax, plausibly alleges public claim, (Jun 3, 2025)

By Kathleen Kapusta, J.D.

The employee alleged that New Hampshire’s participation in State of Missouri v. Biden constituted a cognizable public policy for purposes of a wrongful termination claim.

Although a clinical quality improvement manager for Boston Medical Center sufficiently alleged that she was terminated out of bad faith—the remote worker was fired after her request for a religious exemption to BMC’s COVID-19 vaccination mandate was denied twice without explanation—she failed to show any causal link between her termination and her employer’s improper motive, a federal district court in New Hampshire concluded. Because she sufficiently alleged, however, that she refused to perform an act that public policy would condemn, the court declined to dismiss her public policy wrongful discharge claim (Vermette v. Boston Medical Center Corp., No. 1:24-cv-335-TSM (D.N.H. May 29, 2025)).

Mandate. The employee worked as a clinical quality manager from August 2014 until December 2021, working 100 percent remotely since 2016. When BMC issued a mandatory COVID-19 vaccination policy in August 2021, she objected based on her past reaction to the Hep B vaccine—she developed facial palsy shortly after taking the vaccine—and her religious beliefs as a Catholic.

First exemption request. In September, she submitted a religious exemption request based on her belief that the use of aborted fetuses/cells in the vaccine’s development was “morally and ethically wrong.” She also stated that her body was “the temple of the Holy Spirit” and provided an attestation of her religious beliefs from a religious leader. In October, without explaining the basis for his decision, BMC’s Senior Director of Employee and Labor Relations denied her request. Although the employee emailed the director requesting further discussion, he never replied.

The employee then called BMC’s medical director and explained that she was refusing to get the vaccine due to religious and medical concerns. She told the medical director about her facial palsy diagnosis following her Hep. B vaccine, disclosed her family’s medical history of neuromuscular disease, and expressed her concern that the COVID-19 vaccine could pose a risk to her. In response, the medical director told her that the vaccine was “safe” and that she “should get it.” And while the employee expressed her belief that she should not have to take the vaccine because she worked remotely, the medical director told her that “people who stay home are known to have contracted” COVID-19.

Second exemption request. In late October, the employee submitted a second religious exemption request in which she provided more detail about her religious objections. Specifically, she explained that “getting the vaccine, a product manufactured and/or developed through the use of aborted fetuses is a sin, and by getting the [COVID-19] vaccine, she would be willingly sinning and separating herself from proper fellowship with God.” She did not receive a response until her supervisor contacted HR and learned that the request had been denied.

Terminated. The employee was terminated in December after she refused to get the COVID-19 vaccination.

Suing, she asserted claims under Title VII and state law for religious discrimination and retaliation as well as a wrongful discharge claim. BMC moved to dismiss her retaliation and wrongful discharge claims and the employee conceded to the dismissal of her retaliation claim.

Bad faith. Addressing the employee’s wrongful discharge claim, and specifically the requirement that she sufficiently allege BMC terminated her out of bad faith/malice or retaliation, the court found the employee sufficiently alleged bad faith. Specifically, she alleged she twice applied for an exemption and was denied relief without any explanation or consideration of her remote status, which was enough to satisfy the first element of her wrongful discharge claim.

As to her assertion, however, that her conversation with the medical director was evidence of bad faith or malice that motivated BMC to fire her, the court noted that the medical director encouraged her to get the vaccine and she did not allege that the medical director was involved in and/or influenced BMC’s decision to terminate her. Thus, said the court, because she did not establish a causal link between her termination and the medical director’s improper motive, she failed to state a claim based on the medical director’s alleged conduct.

Retaliation. Although it found the employee sufficiently alleged bad faith, it also addressed BMC’s contention that she did not demonstrate she was terminated out of retaliation. Here, the court found that she never alleged her application for a religious exemption to the vaccination policy was the but-for cause of her termination. Rather, she alleged that BMC imposed the vaccination policy on all employees and fired her when she refused to comply with the policy. And while she alleged that her termination was in retaliation for her rejection of the medical director’s vaccination recommendation and “medical advice,” the court again found the employee did not allege any facts linking the medical director’s conduct to the termination decision and thus she failed to allege that her termination was motivated by retaliation.

Public policy. BMC next argued that the employee failed to allege her termination was contrary to a recognized public policy. Though she argued that BMC’s COVID-19 vaccination policy violated the Food, Drug, and Cosmetic Act’s emergency use authorization (EUA) provision, “which was in part based on the Nuremberg Code, and... precludes forcing humans to partake in experimental medical procedures without their informed consent,” the Nuremberg Code, said the court, has no applicability in a case involving a vaccination requirement during the COVID-19 pandemic and it does not govern private employers. Noting further that the EUA provision “only has legal effect on a person who carries out an activity for which an authorization under” it is issued, the court found that because the employee did not allege that BMC employees directly administered COVID-19 vaccinations, the EUA could not provide a public policy basis for her wrongful discharge claim.

State of Missouri v. Biden. Finally, the employee alleged that New Hampshire’s participation in State of Missouri v. Biden, “where the State of New Hampshire was seeking, or had, a ‘stay’ precluding the federal government from enforcing the [COVID-19 vaccine] mandate on healthcare workers[,]” constitutes a cognizable public policy for purposes of a wrongful termination claim. For its part, BMC argued that New Hampshire’s involvement in that case “is not a source of law that creates any cognizable public policy” because the Supreme Court ultimately ruled “that the Department of Health and Human Services had statutory authority to enforce a rule requiring health care workers to be vaccinated against COVID-19.” Thus, according to BMC, the federal government had a public policy favoring COVID-19 vaccinations.

While the court acknowledged that the Supreme Court ultimately upheld the vaccine mandate at issue in Biden, the employee alleged that at the time of her termination, New Hampshire’s position was that a vaccine mandate for healthcare workers was improper. “Viewed generously,” said the court, “these allegations could qualify as a cognizable public policy in New Hampshire and support [the employee’s] claim that BMC terminated her employment because ‘she refused to perform [an act] that public policy would condemn.’”

Religious discrimination. The employee also sufficiently alleged that she twice requested a religious exemption to BMC’s vaccine mandate, which BMC denied without a substantive explanation or any analysis of whether permitting her to continue working remotely would pose an undue hardship. Explaining that the lack of meaningful discussion and failure to accommodate the employee’s religious beliefs could qualify as religious discrimination, which is contrary to public policy, the court declined to dismiss the employee’s wrongful discharge claim.

The case is No. 1:24-cv-335-TSM.

Judge: Saint-Marc, T.

Attorneys: Leslie H. Johnson (Law Office of Leslie H. Johnson) for Susan Vermette. Kevin M. Sibbernsen (Jackson Lewis) for Boston Medical Center Corp.

Companies: Boston Medical Center Corp.; Boston Medical Center Health Plan, Inc.; Well Sense Health Plan

Cases: Discharge Discrimination ReligiousDiscrimination Covid19 NewHampshireNews